Powers of Attorney Amendment Act 2008 (TAS)

Powers of Attorney Amendment Act 2008

An Act to amend the Powers of Attorney Act 2000

[Royal Assent 13 June 2008]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Powers of Attorney Amendment Act 2008 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Powers of Attorney Act 2000 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3(1) of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of enduring power of attorney : instrument includes registration application; (b) by omitting the definition of person acting judicially ; (c) by inserting the following definition after the definition of register : registration application means a registration application in accordance with form 5; 5Section 4 amended (Register of powers of attorney) Section 4 of the Principal Act is amended as follows: (a) by inserting in subsection (2) "copies of" after "consists of"; (b) by omitting from subsection (2) "or any other"; (c) by inserting in subsection (4) "a copy of" after "register"; (d) by inserting the following subsection after subsection (4) : (5)  For the purposes of this section, a copy of a power of attorney, instrument varying or revoking a power of attorney or any other instrument relating to powers of attorney is to be made by a process approved by the Recorder. 6Sections 9 and 10 substituted Sections 9 and 10 of the Principal Act are repealed and the following sections are substituted: 9Formal requirements (1)  A power of attorney made or created under section 18 or 30 must – (a) not have more than one donor; and (b) be signed by the donor with that signature attested by the signature of – (i) in the case of an enduring power of attorney, two witnesses neither of whom is a party to it and each of whom has witnessed it in the presence of the donor and each other; or (ii) in the case of any other power of attorney, a witness who is not a party to it and who witnesses it in the presence of the donor; and (c) comply with this Act; and (d) be legible; and (e) be capable of producing a legible copy by a process approved by the Recorder; and (f) contain any matter that is intended to be in addition to, or to be inserted in and form part of, a power of attorney in a page of that power of attorney or in the form of an annexure; and (g) be on A4-size paper; and (h) if it consists of more than one page, have each page consecutively numbered and be stapled or pinned in the top left hand corner; and (i) be accompanied by a registration application; and (j) include or be accompanied by any information or document required by the Recorder. (2)  An annexure to a power of attorney must – (a) be in the same size and form as the power of attorney; and (b) be referred to in the power of attorney; and (c) contain identification that it is the annexure to the power of attorney; and (d) subject to subsection (3) , be signed by the parties to the power of attorney or, where the party is a body corporate, by the persons who have attested the affixing of the seal of that body corporate to the power of attorney; and (e) comply with this Act. (3)  If one of the parties to a power of attorney is a body corporate that is not required by law to affix its seal to the power of attorney, an annexure to the power of attorney is to be signed by any person who is authorised by law to execute the power of attorney. (4)  An alteration to a power of attorney or annexure – (a) is to be made by striking through the word or words intended to be altered so as not to render illegible the original word or words; and (b) is to be initialled by the donor and the attorney. (5)  The initialling by the donor of an alteration to a power of attorney or annexure is to be witnessed – (a) in the case of an enduring power of attorney or annexure to such a power of attorney, by two witnesses neither of whom is a party to it and each of whom has witnessed it in the presence of the donor and each other; or (b) in the case of any other power of attorney or annexure to such a power of attorney, by a witness who is not a party to it and who witnesses it in the presence of the donor. (6)  A witness to the initialling of an alteration to a power of attorney or annexure may be the same person as, or a different person to, the person who witnessed the power of attorney or annexure. 10Requirements for other instruments (1)  Subject to this section, section 9 applies as far as relevant – (a) to an instrument that refers to a power of attorney, other than an instrument referred to in section 32A ; and (b) to an annexure to such an instrument. (2)  An instrument that refers to a power of attorney, including an instrument referred to in section 32A , must clearly identify the power of attorney by reference to – (a) the name of the donor; and (b) the name of the attorney; and (c) the date on which it was executed; and (d) the distinctive number or other means of identification given under section 12(2) . (3)  Where an instrument that refers to a power of attorney is required to be signed by the donor, it is sufficient if it is signed by the donor’s personal representative with a statement as to how and in what capacity he or she has been appointed to act. 7Section 11 amended (Powers of attorney not to be registered except in accordance with this Act) Section 11 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  The Recorder must not register any power of attorney or other instrument under this Act unless it – (a) complies with this Act; and (b) is accompanied by a registration application. (b) by omitting subsections (3) and (4) and substituting the following subsections: (3)  If a power of attorney or other instrument is lodged with the Recorder under this Act for registration and does not comply with this Act, the Recorder must – (a) refuse to register the power of attorney or other instrument and return it to the person who lodged it; or (b) return the power of attorney or other instrument to the person who lodged it with a notice notifying him or her that the Recorder will refuse to register the power of attorney or other instrument unless the specified corrections are made. (4)  Where corrections are to be made as mentioned in subsection (3)  – (a) the Recorder may refuse registration of the corrected power of attorney or other instrument if the corrections are not made within 60 days after notice under subsection (3)(b) was given, or within such further time as the Recorder may allow; and (b) the corrections are to be initialled by the donor and attorney. (4A)  The initialling of corrections to a power of attorney or other instrument by the donor under subsection (4)(b) is to be witnessed – (a) in the case of an enduring power of attorney, by two witnesses neither of whom is a party to it and each of whom has witnessed it in the presence of the donor and each other; or (b) in the case of any other power of attorney, a witness who is not a party to it and who witnesses it in the presence of the donor. (4B)  A witness to the initialling of corrections to a power of attorney or other instrument may be the same person as, or a different person to, the person who witnessed the power of attorney or other instrument. (c) by omitting from subsection (5) "on" and substituting "in relation to"; (d) by inserting the following subsection after subsection (5) : (5A)  Despite any provision of this Act to the contrary, the Recorder may accept for registration a power of attorney, annexure or alteration to a power of attorney that does not comply with this Act if the Recorder considers it appropriate to do so in the particular circumstances. 8Section 12 amended (Lodgment of powers of attorney, &c.) Section 12 of the Principal Act is amended as follows: (a) by omitting subsection (2) and substituting the following subsection: (2)  On lodgment of a power of attorney or other instrument, the Recorder must – (a) identify the power of attorney or other instrument by endorsing on it a distinctive number, a distinctive letter and number or any other identifying procedure; and (b) take a copy of the endorsed power of attorney or other instrument; and (c) return the endorsed power of attorney or other instrument to the person who lodged it. (b) by inserting in subsection (3)(a) "copy of the" after "on the". 9Section 15 substituted Section 15 of the Principal Act is repealed and the following section is substituted: 15Scope of powers of attorney (1)  A power of attorney executed before the commencement of the Powers of Attorney Amendment Act 2008 may be registered if, at the time of its execution, the power of attorney would have been capable of being registered under the relevant Act. (2)  In this section – power of attorney means a document creating a power of attorney for any purpose or varying, revoking or otherwise relating to a power of attorney; relevant Act means – (a) for the period commencing on 4 April 2001 and ending immediately before the Powers of Attorney Amendment Act 2008 commences, this Act; and (b) for the period commencing on the commencement of the Powers of Attorney Act 1934 and ending on 3 April 2001, the Powers of Attorney Act 1934 . 10Section 18 amended (Form of power of attorney) Section 18(1) of the Principal Act is amended by omitting "attorney" first occurring and substituting "attorney, other than an enduring power of attorney,". 11Section 26 amended (Appointment of attorney by class) Section 26 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections: (2)  If a person does any act, or executes or signs a document, and purports to do so as a member of a class of persons appointed as attorneys under a power of attorney – (a) any other person dealing with the purported attorney may assume the purported attorney has sufficient authority to do the act, or sign or execute the document, as such an attorney; and (b) the doing of the act, or the signature on or execution of the document, is taken to be evidence that the purported attorney has sufficient authority to do the act, or sign or execute the document, as such an attorney. (3)  This section does not apply to an enduring power of attorney. 12Section 30 amended (Creation and effect of enduring powers of attorney) Section 30 of the Principal Act is amended as follows: (a) by omitting paragraph (b) from subsection (2) ; (b) by inserting the following subsection after subsection (4) : (5)  If before the commencement of this subsection an attesting witness was not present, as required by form 3 or form 4 as in force before that commencement, when an attorney signed the form of acceptance on or relating to an enduring power of attorney (whether or not the witness attested that he or she witnessed the attorney’s signature) – (a) the enduring power of attorney is not and has never been, by that reason only, invalid; and (b) any act done, or document signed or executed, by the attorney is not and has never been, by that reason only, invalid. 13Section 32 amended (Duties of attorney under enduring power of attorney) Section 32 of the Principal Act is amended as follows: (a) by omitting from subsection (2) "Subject to subsection (3) , an" and substituting "An"; (b) by omitting subsection (3) . 14Section 32A insertedAfter section 32 of the Principal Act , the following section is inserted in Part 4: 32ASubstitution of The Public Trustee as attorney (1)  If – (a) a power of attorney appoints only one attorney, that attorney may appoint The Public Trustee to act as attorney in his or her place; or (b) a power of attorney appoints more than one attorney, those attorneys jointly may appoint The Public Trustee to act as sole attorney in their places. (2)  An appointment under subsection (1) is to be – (a) in accordance with form 6; and (b) signed by the attorney or all attorneys; and (c) accepted by The Public Trustee in accordance with that form. (3)  An appointment is of no effect until registered by the Recorder. (4)  If The Public Trustee is appointed to act as attorney under this section, a reference in this Act to an attorney is taken to be a reference to The Public Trustee. 15Section 33 amended (Power of Board to make orders in respect of enduring power of attorney) Section 33 of the Principal Act is amended by inserting after subsection (6) the following subsections: (6A)  If the Board adjourns a hearing held under this section, the Board may make any interim order or give any directions it considers appropriate, including making an order appointing The Public Trustee as administrator of the estate of the donor. (6B)  Subsection (6A) does not authorise the Board to suspend the operation of an enduring power of attorney, or extend such a suspension, which may only be done by the Board under subsection (4) or (6) . (6C)  An interim order has effect for the period of the adjournment and any subsequent adjournment or as specified in the interim order. (6D)  The Board may vary or revoke an interim order or make a further or subsequent interim order. 16Section 55A substituted Section 55A of the Principal Act is repealed and the following section is substituted: 55APrescribed fees (1)  The fees prescribed in Schedule 2 are payable under this Act for the matters to which they respectively relate. (2)  A prescribed fee – (a) is to be paid to the Recorder or an agent appointed by the Recorder under section 169E of the Land Titles Act 1980 ; and (b) may be paid in any manner approved by the Recorder. (3) A person, if so authorised by the Recorder or an agent appointed by the Recorder under section 169E of the Land Titles Act 1980 , may pay a prescribed fee after the transaction to which it relates. 17Schedule 1 substituted Schedule 1 to the Principal Act is repealed and the following Schedule is substituted: Schedule 1Forms

Section 3(2)

Form 1

Section 18(1)(b)

Form 2

Section 18(1)(c)

Form 3

Section 30(1)(b) and (2)(c)

Form 4

Section 30(1)(c) and (2)(c)

Form 5

Section 3(1)

Form 6

Section 32A

[Second reading presentation speech made in:

House of Assembly on 8 APRIL 2008

Legislative Council on 17 APRIL 2008]